Black v. Black

460 So. 2d 1175
CourtLouisiana Court of Appeal
DecidedDecember 5, 1984
Docket16704-CA
StatusPublished
Cited by16 cases

This text of 460 So. 2d 1175 (Black v. Black) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. Black, 460 So. 2d 1175 (La. Ct. App. 1984).

Opinion

460 So.2d 1175 (1984)

William Gary BLACK, Plaintiff-Appellee,
v.
Shirley Jean Parker BLACK, Defendant-Appellant.

No. 16704-CA.

Court of Appeal of Louisiana, Second Circuit.

December 5, 1984.
Rehearing Denied January 4, 1985.
Writ Denied February 15, 1985.

Stewart & Stewart by Jonathan M. Stewart, Arcadia, for defendant-appellant.

*1176 Culpepper, Teat, Caldwell & Avery, by Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.

Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.

JASPER E. JONES, Judge.

The mother appeals a judgment rendered on a rule filed by the father seeking joint custody of the minor children of the marriage. The judgment awards joint custody with each parent receiving physical custody for alternating six month periods and relieves the father of his obligation to pay child support while he has physical custody. The judgment awards the father the right to claim the children as dependents on his income tax returns.[1] We amend and affirm.

William and Shirley Black were married August 13, 1968. Two children were born of the marriage; Brad on December 8, 1971 and Jennifer on June 15, 1973. The parties legally separated in February, 1980. The mother received provisional custody of the children in the separation proceedings. The father was granted a divorce by judgment signed July 21, 1982. The divorce judgment awards the mother sole permanent custody. The father was awarded specific visitation privileges and was ordered to pay $400.00 per month child support.

The father filed the rule for joint custody on August 12, 1983 and filed with it a joint custody implementation plan in which he proposed that he receive custody for half of each year.[2] He also proposed that he would be willing to continue paying the $400.00 per month child support during the period of time the mother has custody. The mother opposed the rule and the custody plan filed by the father.

Trial was held on February 1, 1984. At trial both parents called a number of character witnesses. The testimony of these witnesses and that of the parents establishes they are good loving parents and have good relationships with the children. The only other witness who testified was a psychologist, Dr. Donald Gucker, who examined the children at the mother's request prior to trial. Dr. Gucker testified that both children are happy and well adjusted with no psychological or emotional problems. He stated that his optimistic assessment of the children's emotional condition indicates the mother and father are excellent parents. Despite these findings Dr. Gucker advised against granting joint custody because he has found that alternating living arrangements, where children live for part of the time in one home and part in another, are emotionally disruptive to some children.

At the close of the evidence the trial judge announced he had decided to grant joint custody with the parents to receive physical custody for equal periods of time. The reasons given by the trial judge to support his decision are:

... I believe that Mr. and Mrs.—Gary Black and Shirley Black ... both want the best for their children.... I think you both think the same way, as far as the best for your children herein and what values you want your children to have.... The testimony of everybody here that came was that both Mr. Black and—Gary Black and Shirley Black were good parents. I've never had a case where both parties were so near the same herein and I don't think that a more fit case for trying the joint custody and when I'm saying joint custody, I think the intent of the act was at least— was the fifty-fifty custody of the children herein. As I said before, I don't know that it was. I think the law tells that it should work. I think it tells us that this is the presumption. I think I'm burdened with the responsibility herein of *1177 dividing the children fifty-fifty between the parties. I see no good reason not to.... I think the law says it should be fifty-fifty, basically speaking, unless there is a reason to say different. I see no reason why it should be different, from the testimony herein....

After announcing his decision the trial judge gave the parties several days to work out a custody implementation plan. The parents failed to agree to a plan and the trial judge devised his own which was incorporated into the judgment.

The issues raised on appeal are:
(1) Whether joint custody is in the best interest of the children;
(2) If joint custody is in the best interest of the children, whether the trial court erred in awarding physical custody on an equal time basis; and
(3) Whether the trial court erred in modifying the father's child support obligation and in determining who could claim the children as dependents for income tax purposes.

Issue # 1

LSA-C.C. art. 157 provides that changes in child custody after an original award shall be made in accordance with LSA-C.C. art. 146. Article 146 provides throughout that custody shall be awarded in accordance with the best interest of the children. The article establishes an order of preference for a custody award with custody to both parents jointly being the first preference. 146 A(1). The article further establishes a rebuttable presumption that joint custody is in the best interest of the minor children. 146 C.

The presumption in favor of joint custody may be rebutted upon a proper showing that a different arrangement is in the child's best interest. Such a showing must include a consideration of eleven specific factors plus any other factor which the trial court deems to be relevant. 146 C(2)(a)-(l);[3]Turner v. Turner, 455 So.2d 1374 (La.1984).

The trial judge stressed the equal fine qualities of the respective parents in his reasons for judgment but failed to articulate reasons why the joint custody was for the best interest of the children. The supreme court pointed out in Turner v. Turner, supra, the best interest of the child is, "the sole criterion to be met in making the award." Implicit in the trial judge's joint custody award is a finding that, considering the factors listed in 146 C(2), the statutory presumption in favor of joint custody had not been rebutted. Our review of the 146 C(2) factors in light of the record reveals:

(a) The parties both love their children and the children love them. The children may have stronger emotional ties with their mother since she has had sole custody for over four years but there is no indication that they would not develop equal ties with their father in a joint custody arrangement.

*1178 (b) Both parties are equally capable of giving the children love, affection and guidance. The children will be able to attend the same school and church and participate in the same activities regardless of which parent has physical custody. We note that both parents are educators[4] and both attend the same church.

(c) There is no indication that either party is incapable of providing the children with food, clothing, medical care or other material needs.

(d) The mother currently resides in the former family home and the children have resided there since they were infants.

(e) Both parties appear to reside in permanent homes.

(f) There is no indication that either party is morally unfit.

(g) There is no indication that either party is mentally or physically unhealthy. Dr.

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Bluebook (online)
460 So. 2d 1175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-black-lactapp-1984.